I caught up with Kennedy during a reception at the Justice Anthony M. Kennedy Library and Learning Center in the Robert Matsui Courthouse hosted by the Federal Bar Association Sacramento Chapter last Friday. Kennedy, after listening to my question about the false crux of his decision, waved his hand and shrugged off the issue, calling it something for others, “the bar and the lower bench to figure out”...

The full quote from Kennedy — after he listens to Fang's presentation — was "Well, I don’t comment. That’s for the bar and the lower bench to figure out."

So today's Althouse posts so far seem to all be about arrogant I-know-better-than-the-rest-of-you-lesser-beasts elitists. Notice how he states up front and confidently that Supreme Court Justice Kennedy is in error.

Well I tried to reach Lee Fang (I did, I tried to google his name, know how many Lee Fangs there are?) to get him to address the widely held opinion that he is a self-important A-hole. Also wanted to ask him if he still beats his wife and children and if he still cheats on his taxed. There is also a rumor that he is having relations with farm animals. He did not refute any of these allegations by press time...

May I ask how this story came to your attention? I'm asking because I'm curious how widespread the original story, and now the (completely valid and important) counter-story has spread on the web. And I am always curious (as you know) about how you curate your blog.

Lee Fang is a dishonest, intellectually limited hack. Power Line blog took him apart several years ago over biased and error saturated stories. Yet he is still out there, and someone is paying him to write stuff like this.

"The author, Lee Fang, makes himself the hero of the story"Half of the problem with modern "journalism", right there.The other half is blatant but denied partisanship.And the third half is prideful ignorance.

The left lost the moral high ground on campaign finance reform in 2008 when John McCain of McCain-Feingold took the public money and Barack Obama forewent the public money to go with private money instead. Citizens United followed shortly thereafter.

The famous $27 average contribution to the Bernie Sanders campaign was just the $2,700 individual maximum divided by 100. I don't if they actually put through 100 separate charges, or did their math based on some fine print on the webpage, or perhaps just did the division in their own imagination.

I have yet to find a Citizens' United hater who can explain the mechanism by which people's 1st amendment rights evaporate when they band together to exercise them.

That's easy. Not all of us believe that spending or accumulating money is covered by the First Amendment. Granted, the idea that money=speech is so well ingrained in Supreme Court jurisprudence that it will probably take a constitutional amendment to rectify it.

Americans have a Constitutional right to petition for redress of grievances. Do opponents of Citizens United seriously think that this is only an individual right, or that we can only petition for ourselves? Have they thought this out?

If we couldn't band together and hire someone (=a lobbyist) to go to D.C. to petition on our behalf, the people of D.C. and the D.C. suburbs would be even more crushingly dominant than they are now. They can ride the subway to Capitol Hill and talk to legislators in person whenever they want. At least now, farmers or miners or hunters or housewives or businessmen in Alabama or Alaska or Puerto Rico can pool their money and send someone to D.C. to represent their interests, if enough people share the same interest. If not, they're out of luck.

Reading this tells me that the person has no respect for the Justices nor the Supreme Court.

Why? Because he asked Justice Kennedy a hard question? For people who supposedly love the First Amendment you sure treat those who actually exercise their rights under it with disdain (at least when you don't like their speech).

No, because anyone - even a moron reporter - would know that if you confront a Supreme Court Justice in that manner you're going to get blown off. As you should be.

"For people who supposedly love the First Amendment you sure treat those who actually exercise their rights under it with disdain (at least when you don't like their speech)." Yeah, just like everyone reacts without disdain to Trump exercising his First Amendment rights.

Though Kennedy may be right in this case, maybe he and the SC SHOULD revisit some of their decisions and answer questions about the logic behind their decisions. Not in citizens United, but how about Obgerfell. Maybe Kennedy should explain his logic a bit more, and be questioned on how valid his decision, in fact, was.

Freder wrote:Why? Because he asked Justice Kennedy a hard question? For people who supposedly love the First Amendment you sure treat those who actually exercise their rights under it with disdain (at least when you don't like their speech).

Funny, because we'd say the same thing about your issues with Citizens United. You seem to have a disdain for speech you don't like.

You said: "Not all of us believe that spending or accumulating money is covered by the First Amendment."

So in your view, Congress could pass a law forbidding me from buying a printing press with money?

Can Congress pass a law forbidding The New York Times from endorsing political candidates?

Can Congress pass a law forbidding me from buying a plane ticket for the purpose of traveling to another state to engage in political speech?

Can Congress pass a law forbidding my friends and me from pooling our money for the purpose of buying an ad criticizing, say, the sitting mayor of our town, in the weeks before the next mayoral election?

Can Congress pass laws such as those, in your view, without violating the first Amendment? If not Congress, could a state legislature pass such a law without violating the First Amendment?

Fang is right! Corporations are NOT people and do not have the right to free speech! Only people have that right! Well except for when news papers endorse candidates they like or give favorable coverage to candidates they like or give unfavorable coverage to candidates they don't like because it is not corporations that are doing that. It is individual reporters and/or shareholders doing that through their combined involvement with and/or ownership of a business... oh wait... but that is different cause SHUT UP!

"That’s for the bar and the lower bench to figure out." And maybe he should have assumed that when he decided to become a legislature and overturn marriage laws and require gay marriage to be legal. He took it upon himself to become supreme legislature but then said "let them figure out what to do with my decision. Don't question me about it anymore". It may be a valid argument, but it does point out the degree to wiich the SC is above all other branches to the point where no one can even really question the validity of their proclamations. They simply decide stuff, and then the lower courts have to figure it out.

My favorite question is this: if the 1st Amendment doesn't apply to corporations, like Freder claims, and we need to throw out Citizen's United: Then doesn't the government have the right to run the NYT and Washington Post? We all know that right now, there would be no difference at all in the content, but just imagine Trump with the power to demand that all press outfits that are groups of people vet their stories by him.

After all, corporations and people acting collectively (LLC, partnership, etc) don't have any rights under the 1st Amendment, so certainly the freedom of the press, like freedom of speech and the freedom to petition the government, and the freedom of religion, is only an individual right. The second you take out a business license, you waive all those rights, and the Feds can force you to say whatever they want you to say, worship or not who they want, etc.

Right Freder? Tell me why the corporation known as Citizen's United should be punished for daring to criticize Hillary, but the New York Times, also a corporation, is allowed to print whatever they want, even --gasp! -- something critical of Hillary( yeah, I know: their only criticism of Hillary is that she's not executed all Christians and Republicans yet).

If the 1st amendment right to freedom of speech and religion does not apply to corporations (even corporations Sole), then the rights to a free press and to petition the government for redress do not either.

Its funny that I actually side with the reporter on this case, and dont like Kennedy's answer (even if it's right). I just disagree with the reporter over which cases Kennedy should be questioned on. And funnily enough, if a different reporter had asked Kennedy about Obgerfell and Kennedy made the exact same argument, how many liberals would be saying "Of course Kennedy is right. how DARE you ask Kennedy about the logic behind his decision".

"Not all of us believe that spending or accumulating money is covered by the First Amendment."

So the only free press is for non-profit organizations? (And are even they allowed to charge money for their tracts? pay authors for their articles? pay editors and typesetters for their labor?) Who will break the news to the Sulzburgers?

So we need to clip the first amendments wings! But the fifth amendment! That one is golden!

Or maybe it's only Democrats should be allowed to use the first and fifth amendment.

Only a single person with a printing press and a few reams of paper, or a guy standing on a soap box in the town square has freedom of speech I guess. Not corporations like the New York Times. What fucking tools!

"That's easy. Not all of us believe that spending or accumulating money is covered by the First Amendment. Granted, the idea that money=speech is so well ingrained in Supreme Court jurisprudence that it will probably take a constitutional amendment to rectify it."Its not so much that money itself is speech. Its more that, if you want to engage in speech in public you need to spend money to reach people. I dont see how money won't be involved. Even "free" communication involves exchange of capital. I may not be paying for it when I use Blogger, but Google is still making money the more people use their platform. So, I don't really get this argument. And really, why would it matter if money exchanged hands or not? Speech is speech.

Further, the idea that corporations are people did not start with Citizens United or Mitt Romney. We've had that concept in mind guiding our interactions since before we even had a country. Why are liberals so incredulous about this concept? Its as old as British common law.

For people who supposedly love the First Amendment you sure treat those who actually exercise their rights under it with disdain

Is there some constitutional guarantee that idiots not be treated with disdain? Just asking? The Intercept's parent corporation was allowed to publish this criticism of Kennedy.

Then for Freder's howler:

Not all of us believe that spending or accumulating money is covered by the First Amendment.

Look who published this story, a publishing company founded by an eBay gazillionaire.

The Intercept is a publication of First Look Media. Launched in 2013 by eBay founder and philanthropist Pierre Omidyar, First Look Media is a multi-platform media company devoted to supporting independent voices, from fearless investigative journalism and documentary filmmaking to arts, culture, media and entertainment. First Look Media produces and distributes content in a wide range of forms including feature films, short-form video, podcasts, interactive media and long-form journalism, for its own digital properties and with partners.

Freder's problem is when corporations FREDER DOESN'T LIKE have first amendment rights.

That's easy. Not all of us believe that spending or accumulating money is covered by the First Amendment. Granted, the idea that money=speech is so well ingrained in Supreme Court jurisprudence that it will probably take a constitutional amendment to rectify it.

Nobody argues that it is.

But what legal justification can you make that somebody cannot spend their money as they see fit to spread their message as they see fit? You are always free to ignore TV ads. I do so all of the time.

Why does political speech deserve less protection than commercial speech? I don't see why "Don't vote for this politician to lead the country" should be verboten before an election, but "buy this beer" is cool at any time. They should all be permitted.

And why would SOME companies be bound by that law and others (i.e large multimedia conglomerates) would not be? Why does Comcast deserve more protections (thru NBC News) than, say, Verizon?

Why should some companies be more equal than others?

So the only free press is for non-profit organizations? (And are even they allowed to charge money for their tracts? pay authors for their articles? pay editors and typesetters for their labor?) Who will break the news to the Sulzburgers?

"Freder Frederson said...I have yet to find a Citizens' United hater who can explain the mechanism by which people's 1st amendment rights evaporate when they band together to exercise them.

That's easy. Not all of us believe that spending or accumulating money is covered by the First Amendment. Granted, the idea that money=speech is so well ingrained in Supreme Court jurisprudence that it will probably take a constitutional amendment to rectify it."

So you would have no problem including unions with these corporate exclusions. Right? RIGHT?

"Freder Frederson said...Reading this tells me that the person has no respect for the Justices nor the Supreme Court.

Why? Because he asked Justice Kennedy a hard question? For people who supposedly love the First Amendment you sure treat those who actually exercise their rights under it with disdain (at least when you don't like their speech)."

This is the typical lefty bed wetting...the First Amendment not only protects speech, but requires that the speech be accepted and not be criticized.

Sigivald said...What is it with the Left and this obsession with Citizens United?

I would submit that no Supreme Court decision in the last half-century has been more misreported, or at least poorly reported, by the mainstream media.

Ask a group of supposedly informed citizens whether Citizens United allows corporations to donate unlimited amounts to candidates, and more than half of the hands will go up.

If people truly understood even so much as the basic facts of the case, they'd change their view on the decision in droves.

It was always too bad, in my view, that Citizens United was a conservative group, and that the documentary they sought to air was about Hillary. I wished that the subject of the free-speech claim could have been the NAACP, or Occupy Wall Street. I'd have added the ACLU, but in fact the ACLU was amicus on the side of Citizens United. It drives liberals nuts when you mention that.

One question. If corporations are not people, can the AG of KS go to Planned Parenthood, a corporation, and seize their records? If corporations don't have free speech rights, then do they not have fourth amendment rights? I'm only an engineer but that would seem logical to me.

Freder, Fang did not ask a hard question. He knew that it would not be answered, and that he could have his moment of faux journalistic heroism as a result. For icing on the cake, he presented the response in a misleading way. Supreme Court justices deal with hard questions all the time. But unlike most everyone else, they do it in a deliberative manner, and publish detailed justifications for their conclusions. In this they are quite different from (say) Hillary Clinton or Donald Trump. It's a institutional imperative if the court is to have any credibility.

The suppression of speech by the government, even speech of the wealthy and powerful, is a violation of the Constitution. You were asked above if you would also subject unions to the speech restrictions that you want to place on for profit corporations. You did not answer. Please do.

Every four years a corporation named McClatchy prints a circular (it gets lighter and lighter every year), called the Kansas City Star, that recommends a party's candidate for President. Can they do that? It seems like a corporate advertisement for a candidate. If corporations don't have free speech rights, this just seems wrong to me.

It was always too bad, in my view, that Citizens United was a conservative group, and that the documentary they sought to air was about Hillary. I wished that the subject of the free-speech claim could have been the NAACP, or Occupy Wall Street.

What color is the sky in your world that you think it was even possible that the case would have been brought against a liberal group?

Chuck,Thanks. But was that decided on the idea that the NAACP had a constitutional right to privacy? If so, then, following the arguments of the CU opponents, they would have that right if they were a corporation because people have a right to privacy and corporations aren't people.

Sorry I couldn't edit my original comment. I didn't specifically mean it for you but thanks for your useful answer. :)

Apparently Freder thinks "freedom of speech, or of the press" means getting one's political opinions published for free. But what it actually means is that anyone (or any group) is free to publish their opinions even if they have to pay for it. Glad I could clear that up for you, Freder.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." What part of "no" is unclear here?

Blogger tim in vermont said...The case was brought because of the criticism by CU of your girl Hillary, Chuck.

Now give me four worse things for that one, Chuck.

Really! That is an interesting notion. Are you contending that the left-wing Obama Department of Justice is the reason that the case existed at all? That it was Administration bias against a group trying to present an expose' of Hillary?

Because I am just a simple unfrozen Republican caveman lawyer. I don't understand the ways, of the modern tinfoil hat brigade of the Trump fever swamp. And all of your fast-moving conspiracy theories.

I thought that Citizens United v. FEC was about an injunction, to bar FEC enforcement of Sec. 203 of the Bipartisan Campaign Reform Act. On the grounds that enforcement of Sec. 203 violated the First Amendment rights of the plaintiffs.

The only reason I thought that, was because that is what the United States Supreme Court said. Both the majority and the dissenters thought so.

...but Chuck, the case itself...Chuck, it WAS about a group trying to run a movie attacking Hillary Clinton, Chuck. I mean, that sort of started the case, right, the FEC ruling about that, right? Like...like it's weird to not point that out, especially in the context of Hillary continually talking about what a bad ruling it was...meaning she's arguing that it should be ok for the federal government to prevent groups of citizens from running ads criticizing her--like, specifically her in this case.That's worth keeping in mind, right Chuck?

Chuck said...Really! That is an interesting notion. Are you contending that the left-wing Obama Department of Justice is the reason that the case existed at all? That it was Administration bias against a group trying to present an expose' of Hillary?

Because I am just a simple unfrozen Republican caveman lawyer. I don't understand the ways, of the modern tinfoil hat brigade of the Trump fever swamp. And all of your fast-moving conspiracy theories.

I thought that Citizens United v. FEC was about an injunction, to bar FEC enforcement of Sec. 203 of the Bipartisan Campaign Reform Act. On the grounds that enforcement of Sec. 203 violated the First Amendment rights of the plaintiffs.

The only reason I thought that, was because that is what the United States Supreme Court said. Both the majority and the dissenters thought so.

So do you know something more than the Court, tim in vermont?

Chuck, starting to find his footing here on the Althouse blog. Not all voices are of equal value.

The fact that it was a 5-4 split along party lines no doubt contributes to the ongoing dispute about the wisdom of this decision.

Freder Frederson: "Where on earth did I say that the 1st Amendment doesn't apply to corporations."

Actually you said something even less defensible: any activity that Involves "spending or accumulating money" is not covered by the First Amendment. By this test, even an individual proprietorship newspaper that charges for subscriptions, accepts advertising dollars and earns the proprietor a return on his time and investment would by those activities forfeit his First Amendment privileges.

Every time I hear an actual Supreme Court justice speak in public, that person seems to me to be very very smart. (This is regardless of whether or not I agree with the President who made the appointment, or whether or not I agree with the decision being discussed -- if there is one in the public discussion.)

Every time I hear a journalist talk about a Supreme Court decision, that person seems to me to be not very smart, or missing the important point, or speaking from a pre-determined point of view.

Whatever the pretext Chuck, the CU injunction was about defending Hillary from attack, it silenced a case of anti Hillary speech. Same as whatever the pretext was that was used to put the maker of the film "The Innocence of Muslims" in jail, the film that was blamed by Hillary for Benghazi. Dinesh D'Souza, maker of the film Hillary's America also spent time in jail for criticizing Democrats. To suggest that these laws are somehow applied evenhandedly and it was just a deplorable coincidence that it happened to be applied against a conservative organization is to engage in what almost looks like wilful blindness to the political realities around us. Realities you want to cement in place with a Hillary presidency.

Can you imagine it being used against Hollywood filmmakers, who meet with Hillary all the time to give her money, for example? When they make a new Star Trek movie with a stupid plot that is based on her campaign theme "Stronger Together"? "You can nae break a stick when it's in a bundle" - Fascist Scotty.

tim in vermont said...Whatever the pretext Chuck, the CU injunction was about defending Hillary from attack, it silenced a case of anti Hillary speech. Same as whatever the pretext was that was used to put the maker of the film "The Innocence of Muslims" in jail, the film that was blamed by Hillary for Benghazi. Dinesh D'Souza, maker of the film Hillary's America also spent time in jail for criticizing Democrats. To suggest that these laws are somehow applied evenhandedly and it was just a deplorable coincidence that it happened to be applied against a conservative organization is to engage in what almost looks like wilful blindness to the political realities around us. Realities you want to cement in place with a Hillary presidency.

Well this sort of defies any good answer. Any good legal answer. Okay, the federal bureaucracy is tilted left. I agree. D'Souza pled guilty to a federal crime. A crime (essentially laundering campaign donations in excess of personal limits through third persons) that is not particularly debatable on political grounds. I think it was the exact same crime that Democrat trial lawyer Geoffrey Fieger escaped a conviction on, in a Detroit federal court. I cannot square those two case results.

I was hoping that tim in Vermont would take the bait of blaming the prosecution of Citizens United on Obama. When the enforcement action began with the FEC in the last year of the Bush Administration.

A legal debate? Endless persiflage in service of the raw power of the Clintons. Have you been following the whole IRS FEC mess?

The FEC has a history of harassing conservative groups:

prior to joining the IRS, Lerner's tenure as head of the Enforcement Office at the Federal Election Commission (FEC) was marked by what appears to be politically motivated harassment of conservative groups.

Lerner was appointed head of the FEC's enforcement division in 1986 and stayed in that position until 2001. In the late 1990s, the FEC launched an onerous investigation of the Christian Coalition, ultimately costing the organization hundreds of thousands of dollars and countless hours in lost work. The investigation was notable because the FEC alleged that the Christian Coalition was coordinating issue advocacy expenditures with a number of candidates for office. Aside from lacking proof this was happening, it was an open question whether the FEC had the authority to bring these charges. - The Weekly Standard

More corruption of the FEC under Obama:

Judicial Watch announced today that it has obtained email exchanges between former Internal Revenue Services (IRS) Director of Exempt Organizations Lois Lerner and enforcement attorneys at the Federal Election Commission (FEC) indicating that the IRS provided detailed, confidential information concerning the tax exempt application status and returns of conservative groups to the FEC in violation of federal law. - Judicial Watch

The FEC is infested with Democrat operatives, and your campaign to get Hillary elected will only serve to cement the complete politicization of the FEC, the IRS, the Justice Department, including the FBI for years to come. This will create a one party state, which is the Democrat's goal.

A goal you are fine with since Hillary doesn't threaten your rice bowl.

It was always too bad, in my view, that Citizens United was a conservative group, and that the documentary they sought to air was about Hillary. I wished that the subject of the free-speech claim could have been the NAACP, or Occupy Wall Street. I'd have added the ACLU, but in fact the ACLU was amicus on the side of Citizens United. - Chuck

It's unfathomable! Completely inexplicable! How is it that the FEC only went after conservative groups, just happened, by the most unfortunate chance, to come to Hillary's defense?

Really? This idiot works for a Corporation that has 1st Amendment protections, so what, exactly, is that "false crux"?

If the Federal Gov't can tell Citizens United Corporation that they can't publish an anti-Hillary movie in the 2 months before the election, then they can also tell the New York Times Corporation that they can't publish an anti-Trump editorial, opinion piece, or article in that time period.

An individual NYT Editor is free to write and distribute that article, but they can't use the NYT Corporation.

That's the crux of it. If any American corp gets 1st Amendment protections, then all of them do. Pick one

Bad Lieutenant said......Interestingly though, Tim, he's fine with Hillary as a person - never a disrespectful or indecorous word against her. What do you think?

I have said a number of times; I would have been happy to have seen her charged with federal crimes. And I don't understand why she wasn't charged. She's been lying through her teeth, about her sever, about the Benghazi aftermath, about the numerous investigations of her Arkansas days. I don't like her; I've never voted for her, or for any Democrat in recent memory.

So; there's more writing for you to ignore in the future. None of it exculpates Trump.

Because she's not on my team, and doesn't represent or pretend to represent anything I am a part of. And remember, there are virtually no Hillary supporters commenting on this site.

There was a time, pre-Scott Walker, when this blog attracted all kinds. Then came Walker, and the Wisconsin Supreme Court and the public sector unions, and there got to be fewer lefty commenters. Garage Mahal, the infamous Cracker Emcee, etc. And now in The Time of Trump, there is even less tolerance for anything save for a kind of Tea Party mentality. Which is odd insofar as I don't expect that it is truly reflective of Althouse at all. I just think she has her own reason(s) for humoring herself with Trump. Two votes for Obama and then a vote for Trump would be a hell of an interesting case study.

And Ann won't touch a lefty. They bailed on their own. They weren't capable of making reasoned arguments and that is the kind preferred here. So I suppose they've sighted the game wasn't worth the candle. They could have always upped their game.

And to replace them there are always new lefties, many of low grade to be sure, but they keep coming (I wonder who sends them).

Blogger Chuck said...Because she's not on my team, and doesn't represent or pretend to represent anything I am a part of. And remember, there are virtually no Hillary supporters commenting on this site.

Irrelevant and vaguely contradictory.After all, you're here. But - Reagan and Ford and Bush 41 and Dole might call each other assholes, but not Carter or Mondale or Dukakis or Gorbachev? How does that work in your world? And what color is the sky there?